BALLENTINE v. SUPERIOR COURT IN AND FOR SAN MATEO COUNTY ET AL (1944)

Heretofore the petitioner filed an application for a writ of prohibition and for a writ of mandate attacking an anticipated judgment finding him guilty of contempt of court. An alternative writ of prohibition issued on the 19th day of May, 1944, and was made returnable on the 12th day of June, 1944. On June 10, 1944 respondents filed a demurrer and answer. On June 12, they filed a reply, also points and authorities. On the same day a hearing was had in open court. On July 20, 1944, this court filed a decision in favor of respondents and against the petitioner. Thereafter, on August 4, 1944, the petitioner applied for a rehearing. The respondents filed a reply. The rehearing was granted and was heard on October 8, 1944. At that time the points that had previously been made by the respective parties were not argued, and no authority cited, therefore at this time the court does not pass thereon. However, on the rehearing the petitioner contended that the trial court had made two orders fixing the amount of the maintenance of the petitioner's wife and that she filed an affidavit setting up the facts of the petitioner's acts of contempt of the first order but the trial court found petitioner guilty of contempt in not complying with the second order. We think the contention must be sustained.

On September 10, 1943, the trial court entered an interlocutory decree of divorce in favor of Mary T. Ballentine and against the petitioner Edward W. Ballentine. Among other things said decree contained an order that this petitioner should pay to Mrs. Ballentine for her support and maintenance the sum of $150 per month. Said payments were made down to and including the 1st day of November, 1943. Thereafter no payments were made. On the 11th day of March, 1944, Mrs. Ballentine filed an affidavit containing the prayer “that the plaintiff and cross–defendant appear and show cause why he should not be punished for contempt for having failed to make” said payments. The petitioner prepared, served and filed certain affidavits in reply. No other affidavit was filed by Mrs. Ballentine nor anyone else in her behalf, and no other order to show cause was issued in said proceedings. However, a hearing was had on the affidavit filed by Mrs. Ballentine on March 11, 1944, and on April 24, 1944, the trial court made an order in words and figures as follows, towit:

“Whereas, this court by its interlocutory decree of divorce, made and filed herein upon the 10th day of December, 1943, ordered and directed plaintiff and cross–defendant above named to pay defendant and cross–complainant above named the sum of One Hundred and Fifty Dollars ($150.00) per month for her support and maintenance and as alimony; and

“Whereas, said plaintiff and cross–defendant has failed to obey said order and, wilfully and in contempt thereof, still refuses to obey the same, and an order having issued for the said plaintiff and cross–defendant to show cause why he should not be punished for such alleged contempt and the said plaintiff and cross–defendant having been personally served with said order by delivery of a copy thereof to him and having appeared by his attorney Paul A. McCarthy, Esq., in response to said order, and an examination of the charge having been made by this court; and

“Whereas, it appears, and the court so finds, that said plaintiff and cross–defendant has failed to obey the said order and is now in arrears in the payments due under said order to the extent of over Nine Hundred Dollars ($900.00); and

“Whereas, it appears, and the court so finds, that said plaintiff and cross–defendant has it within his power to pay at least Two Hundred and Fifty Dollars ($250.00) on account of said alimony due defendant and cross–complainant on account of the $150.00 per month in alimony so due defendant and cross–complainant; and

“Whereas, it appears, and the court so finds, that said plaintiff and cross–defendant has failed to obey the order of said court and, wilfully and in contempt thereof, still refuses to obey the same to the extent herein set forth although it appears that he has the means and that it is within his power to make said minimum payment of $250.00 on account of said alimony in default;

“It is therefore so ordered that said Edward W. Ballentine, plaintiff and cross–defendant above named, be, and he is hereby ordered to pay within five (5) days from the date hereof to the Sheriff of the County of San Mateo, State of California, for the benefit of said defendant and cross–complainant and on account of said alimony so due her and now in default, the sum of Two Hundred Fifty Dollars ($250.00), and it is further adjudged that if within the said five (5) days the said Edward W. Ballentine fails to make said payment of $250.00 on account of said alimony as hereinabove set forth, he be adjudged guilty of contempt in disobeying this order and that by reason thereof he be imprisoned in the County Jail of San Mateo County, State of California, until he complies with this order, or unless further ordered by the court in the meantime; and

“It is further ordered, that upon the receipt by said Sheriff of said sum of $250.00 by this order directed to be paid by said Edward W. Ballentine, the said Sheriff shall pay and deliver the same to said defendant and cross–complainant or to her attorneys.” Said last mentioned order is the order under attack in this proceeding.

It is patent that said order directed the payments of different sums of money than those provided in the interlocutory decree hereinabove specifically mentioned. It is also patent that no charge was made in the trial court that petitioner had the ability to pay said sum of $250 and that he wilfully refused to pay the same, nor was any order to show cause issued directing him to show cause, if any he had, why said moneys had not been paid. In other words, as the record stands the petitioner has been cited to show cause why he did not comply with one order but the trial court is about to punish him for failing to comply with another and different order. Such procedure is not authorized and the order under attack was made in excess of the jurisdiction of the trial court. In re McCarty, 154 Cal. 534, 537, 98 P. 540. A comparison of the facts in the McCarty case with the facts in the instant case shows that the same principles were involved in both cases.

On the authority of the cited case the writ heretofore issued should be made peremptory. It is so ordered.

STURTEVANT, Justice.

NOURSE, P. J., and SPENCE, J., concur.